![]() ![]() We vacate the death penalty and remand for a new sentencing hearing. We reverse the post-conviction court's finding that Burris was not denied the effective assistance of trial counsel at the penalty phase of his trial.Burris argues his appellate counsel, James Holland, was ineffective for omitting the issue of failure to present mitigating evidence from his brief on direct appeal. He also claims his trial attorneys were ineffective during the penalty phase of his trial because they failed to develop and present evidence of mitigation. He alleges Tom Alsip and Craig Turner, his trial attorneys, were ineffective during the guilt phase of his trial because they failed to object to prosecutorial misconduct and to erroneous instructions. Burris claims that both his trial counsel and his appellate counsel were ineffective.We have regrouped and restated the issues Burris raises on appeal: Go to Judge Roy Jones, acting as special judge, denied Burris' petition for post-conviction relief. This Court affirmed the sentence on direct appeal. ![]() On December 5, 1980, the jury recommended Burris be sentenced to death and Judge John Tranberg followed their recommendation. Gary Burris was convicted of murder under Ind.The capital sentencing statute provides, `The court is not bound by the jury's recommendation.' Ind. This Court has said: "An Indiana trial court need not accept the jury's recommendation either for or against the death penalty.Burris contends that either the mitigating evidence presented at his post-conviction hearing is new evidence, or his trial attorneys were ineffective for failing to discover and present this evidence. Burris argues that the post-conviction court must have erred in finding that mitigating evidence was presented at trial, since the trial court stated in its findings that there was no evidence of mitigation. He claims that their deficient performance and failure to present any favorable evidence adversely affected the outcome. Burris claims he was deprived of his right to meaningful representation because his trial attorneys failed to develop and present mitigating evidence and undermined what mitigating evidence they did present. To meet his burden of proof, Burris must offer strong and convincing evidence to overcome the presumption that counsel prepared and executed an effective defense. A fair trial is denied under this federal standard when the conviction or sentence results from a breakdown of the adversarial process that renders the result unreliable. To succeed on an ineffective assistance of counsel claim, Burris must show that his attorneys' performance fell below an objective standard of reasonableness under prevailing professional norms and that his attorneys' failure to function was so prejudicial as to deprive him of a fair trial. Supreme Court set forth the Sixth Amendment standard for effective assistance of counsel in Strickland v. ![]()
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